In re Guardianship of Johnson ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0562
Filed March 8, 2023
IN THE MATTER OF THE GUARDIANSHIP OF MACKENZIE JOHNSON,
CYNTHIA JOHNSON, Guardian,
Appellant,
________________________________________________________________
Appeal from the Iowa District Court for Marion County, Martha Mertz, Judge.
Cynthia Johnson appeals a district court order removing her as guardian of
her adult daughter. AFFIRMED.
Bradley J. Adams, Knoxville, for appellant.
Scott Lyon of Disability Rights Iowa, Des Moines, for appellee.
Considered by Ahlers, P.J., and Badding and Chicchelly, JJ.
2
BADDING, Judge.
Up until the spring of 2021, Cynthia Johnson was a wonderful guardian for
her adult daughter, Mackenzie. But then Cynthia suffered a series of mental-health
crises, which led the district court to grant Mackenzie’s request to remove Cynthia
as her guardian and appoint a successor guardian. Because we find that Cynthia
was no longer suitable as Mackenzie’s guardian, we affirm the court’s order.
I. Background Facts and Proceedings
Mackenzie Johnson suffers from an intellectual disability as a result of her
premature birth. She was adopted by her grandmother, Cynthia Johnson, when
she was about six years old,1 although Cynthia has cared for her since birth.
Mackenzie has also had a close relationship with the man she sees as her father,
Dennis Ludwig, for all of her life.2 When Mackenzie turned eighteen, she filed a
voluntary petition to have Cynthia appointed as her guardian and conservator,
which the district court granted in 2014.3 See Iowa Code
§§ 633.552(2)(a), .566(2)(a) (2014).
Mackenzie testified that Cynthia always provided for her as a child and into
adulthood, but things changed when they went on a trip to Florida together in early
2021. During the trip, Cynthia learned that her boyfriend, Mike, fell in his garage
back in Iowa. After learning of the fall, according to Mackenzie, Cynthia’s behavior
1 Some of the filings say the adoption occurred when Mackenzie was four, but
Mackenzie testified she was six when the adoption occurred, and Cynthia testified
she thought Mackenzie was seven.
2 Dennis is not Mackenzie’s biological or legal father, but he was in a relationship
with Mackenzie’s biological mother, and Mackenzie views him as her father.
Dennis did not learn Mackenzie was not his biological child until she was six years
old, but this discovery did not change their relationship.
3 The conservatorship is not at issue in this appeal.
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was “bad,” and she was not acting “her normal way.” Cynthia agreed with
Mackenzie, testifying that when she found out about Mike’s fall, she experienced
“sheer panic” and put Mackenzie “through hell.” Cynthia described Mike’s fall as
a “triggering incident” that “started all of these—this mental health treatment.”
These mental-health issues were new to Cynthia, who testified that before Mike’s
fall, she had probably only suffered from mild depression.
Once they returned to Iowa from their trip to Florida, Mackenzie testified that
Cynthia continued to act “[n]ot good” and “not [like] herself anymore.” Mackenzie
said Cynthia was yelling at her more and leaving her by herself at places. In late
June, Cynthia was hospitalized for her mental health. Cynthia agreed in her
testimony that she was “hysterical” before her June hospitalization because she
believed the police were looking for her, there were “cameras everywhere,” and
Amazon devices “listen to us.” Cynthia was released from commitment after about
five days, though she said it felt “like years, months.”
Cynthia was committed again around the Fourth of July. According to
Cynthia, this was a voluntary commitment following an incident where she called
law enforcement because her neighbors were lighting fireworks. She testified that
when she spoke to law enforcement officials that evening, she was “anxious and
upset,” which “was upsetting Mackenzie.” Cynthia said she was so upset that the
officials asked her if she “had a firearm in [her] home because they thought [she]
was uncontrollable.” Mackenzie stayed with Dennis while Cynthia was in the
hospital.
After about three weeks of treatment, Cynthia was released into the care of
her brother because, according to her testimony, “they wanted to make sure I had
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someone watching me to make sure I was taking my medication.” Cynthia went
directly to Dennis’s home with her brother and picked Mackenzie up. From there,
they went to her brother’s home in Tennessee. Mackenzie thought they were
going to stay there “for good.” But after about three days, Cynthia abruptly decided
to leave while her brother and his wife were at work. At one point in her testimony,
Cynthia said that her brother was threatening to have her committed unless she
took her medication, but she felt that her medication was “fatal . . . because it was
way too strong.” Later on, however, Cynthia testified that she left because she
needed to pay her bills. Whatever the reason, Cynthia described their departure
as follows:
So while they were at work, I told Mackenzie, “We need to pack our
bags and we need to get out of here as quick as possible and get
back to Knoxville so I can pay bills and I can get to the [mental health
facility] and get my reduced dosage medication.”
Mackenzie testified that she was scared when they left Tennessee because
Cynthia was acting “[c]razy” and “using the back roads and everything and scaring
me.” On the two-day drive back to Iowa, Mackenzie said that Cynthia was again
“[n]ot good,” “[n]ot herself,” and yelling at her. Cynthia testified that she knew
Mackenzie was scared, but she “tried to make the trip fun.” She did not, however,
let Mackenzie use her cell phone on the trip back because “we could not be found
until we got home.” When they got back to Iowa, Cynthia asked one of her friends
if Mackenzie could live with her, but the friend declined.
The yelling outbursts continued and, eventually, one of the neighbors called
the police. Mackenzie said that when the police came, she “was crying and the
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cops took Grandma.” Cynthia was hospitalized for a third time, and Mackenzie
went back to Dennis’s home, where she has since remained.4
Since Mackenzie has been in his care, Dennis has set up services to help
her develop independence and taken her to regular medical appointments. He
has also encouraged Mackenzie to continue a relationship with Cynthia, who he
testified has “always been wonderful for her.” But Mackenzie testified she is
scared of Cynthia and going back to live with her would be “[b]ad” and “[n]ot good,”
while living with Dennis is “[a]wesome” and “loving.”
While Cynthia was still under a court committal in August 2021, the Iowa
Department of Health and Human Services petitioned for the emergency
appointment of a substitute guardian. See generally Iowa Code § 633.569 (2021).
The petition alleged that Cynthia was committed three times “due to serious mental
impairment” and requested that Dennis be appointed as Mackenzie’s substitute
guardian. Attached to the petition was an application for a temporary
guardianship—signed by both Mackenzie and Dennis—alleging Mackenzie does
not feel safe with Cynthia due to her behaviors. The court entered an emergency
order appointing Dennis as Mackenzie’s temporary guardian, temporarily
removing Cynthia as guardian, and setting the matter for hearing.
In September, a periodic report under Iowa Code section 229.15 was filed
in the commitment proceeding, in which a medical professional concluded Cynthia
4 Cynthia testified that she allowed Mackenzie to stay with Dennis after her status
as guardian was restored because, around the time when they went to Florida in
2021, her home flooded and it was still being repaired. While her appellate brief
identified this as one of the “traumatic and unpredictable events that led to her
mental-health issues,” Cynthia did not testify that it affected her mental health.
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no longer needed involuntary treatment for her bipolar diagnosis. As a result, the
court entered an order for discharge and termination of the commitment. However,
the order “urged” Cynthia “to voluntarily continue with treatment as recommended
by . . . her physician.” Cynthia testified she has voluntarily continued mental-health
treatment by seeing a “social worker/therapist about every two weeks” and virtually
visiting with a physician “for medication updates.” Yet she also testified: “I would
like to stop. I think I’m strong and done.”
In October, before the guardianship hearing was held, the department filed
a notice with the court, stating Cynthia’s “committals have now been dismissed,” it
“knows of no reason that Cynthia . . . cannot continue to act as guardian for
Mackenzie,” and it “no longer has legal grounds to alter the guardianship.” In
response, the court entered an order canceling the upcoming hearing and restoring
Cynthia as guardian. The order directed that if Mackenzie or Dennis desired a
change of guardian, then they would need to file an application seeking the same.
In November, Mackenzie (through counsel) filed a “motion to appoint
successor guardian,” which sought removal of Cynthia as guardian and
appointment of Dennis as successor. The motion alleged “Cynthia is still
experiencing health issues that interfere with her ability to act effectively as
Mackenzie’s guardian,” Mackenzie does not feel safe with Cynthia, and she
wanted to keep living with Dennis. The court appointed a court visitor, see Iowa
Code § 633.562, who filed a report detailing his investigation and recommending
that Dennis be appointed as Mackenzie’s guardian.
A hearing was held in February 2022. At its conclusion, the court ruled from
the bench that Cynthia would be removed as guardian and Dennis appointed as
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successor guardian. The court also directed Dennis to “continue to encourage the
relationship between Mackenzie and” Cynthia, which he pledged to do. The court
memorialized its decision in a brief written order. Cynthia appeals.
II. Standard of Review
The parties disagree on the proper standard of review, with Cynthia arguing
for correction of legal error and Mackenzie arguing for a de novo review. As our
supreme court explained in In re Guardianship of Hedin, 528 N.W.2d 567, 581
(Iowa 1995), because a “petition to terminate a guardianship is not included in
those triable in probate as law actions” in Iowa Code section 633.33, 5 it “is triable
as a proceeding in equity.” Our review is accordingly de novo. Hedin, 528 N.W.2d
at 581. Yet in conducting this de novo review, we recognize “that the removal of
[a] guardian rests in the sound discretion of the court and we will not interfere,
where there is some basis for the order.” In re Guardianship of Cannon, 1 N.W.2d
217, 220 (Iowa 1941). We also “give weight to the fact findings of the district court,
especially concerning the credibility of witnesses, but are not bound by those
findings.” In re Guardianship of Seymour, No. 09-1484, 2010 WL 4967989, at *1
(Iowa Ct. App. Dec. 8, 2010).
III. Analysis
In claiming the district court should not have removed her as guardian,
Cynthia largely highlights her suitable performance as caregiver for Mackenzie
5 Section 633.33 provides: “Actions to set aside or contest wills, for the involuntary
appointment of guardians and conservators, and for the establishment of
contested claims shall be triable in probate as law actions, and all other matters
triable in probate shall be tried by the probate court as a proceeding in equity.”
(Emphasis added.)
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before her mental-health issues arose and her participation in treatment with no
recurring episodes since those issues surfaced in mid-2021. Against that
backdrop, Cynthia argues that she should not have been removed as Mackenzie’s
guardian because there was no “extreme dereliction” of her duties as guardian and
her “short-term mental health problems” do not make her unsuitable.
A. Preliminary Removal Framework
“While the district court has great discretion in the removal of guardians,
there must be some cause for removal.” In re Guardianship of Nobiling,
No. 14-1847, 2016 WL 757410, at *3 (Iowa Ct. App. Feb. 24, 2016). Iowa Code
section 633.3(19) defines “fiduciary” to include a guardian, and section 633.65
provides for removal of a fiduciary as follows:
When any fiduciary is, or becomes, disqualified under
sections 633.63 and 633.64, has mismanaged the estate, failed to
perform any duty imposed by law, or by any lawful order of court, or
ceases to be a resident of the state, then the court may remove the
fiduciary.
Section 633.63(1) governs qualification of resident fiduciaries who are natural
persons of full age and expressly disqualifies a person who is “incompetent”6 or a
person “whom the court determines to be unsuitable.”
B. Unsuitability
As noted, Cynthia submits the court had no basis to remove her as
“unsuitable.” The probate code does not provide any guidance on what renders
someone unsuitable to serve as a fiduciary. See In re Est. of Ragan, 541 N.W.2d
6 The term “incompetent” is defined in Iowa Code section 633.3(25). There is no
indication this district court relied on this ground in removing Cynthia, and
Mackenzie does not argue this ground applies.
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859, 861 (Iowa 1995). In that void, our supreme court adopted the following
standard in Ragan:
The statutory word “unsuitable” gives wide discretion to a
probate judge. Past maladministration of a comparable trust . . .
warrants a finding that an executor or administrator is unsuitable.
Such a finding may also be based upon the existence of an interest
in conflict with his duty, or a mental attitude towards his duty or
towards some person interested in the estate that creates
reasonable doubt whether the executor or administrator will act
honorably, intelligently, efficiently, promptly, fairly and
dispassionately in his trust. It may also be based upon any other
ground for believing that his continuance in office will be likely to
render the execution of the will or the administration of the estate
difficult, ineffective or unduly protracted. Actual dereliction in duty
need not be shown.
Id. (quoting Quincy Tr. Co. v. Taylor, 57 N.E.2d 573, 574 (Mass. 1944)).
Our court applied this standard in Nobiling where, like here, we considered
the removal of a mother as guardian for her adult child. See 2016 WL 757410,
at *5. But because we highlighted the phrase—“a mental attitude towards his [or
her] duty or towards some person interested in the estate that creates reasonable
doubt whether the [fiduciary] will act honorably, intelligently, efficiently, promptly,
fairly and dispassionately”—Cynthia argues the rest of the Ragan standard does
not apply when determining whether a guardian should be removed as unsuitable.
See id. (quoting Ragan, 541 N.W.2d at 861). Instead, according to Cynthia, there
must be a finding of “extreme dereliction” of duties. We see no reason to limit the
court’s “wide discretion” in such a way. Ragan, 541 N.W.2d at 861.
In any event, Cynthia’s “mental attitude” does create a reasonable doubt
that she will act “honorably, intelligently, efficiently, promptly, fairly and
dispassionately.” Cynthia exercised extremely poor judgment during the months
when she was suffering from her mental-health crises. See Nobiling, 2016
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WL 757410, at *5 (finding the guardian’s belief that her son, who sexually abused
one of his siblings, was a suitable choice as successor guardian showed her “poor
judgment” as guardian). Her behavior resulted in multiple interventions from law
enforcement, three committals and hospitalizations, a furtive trip home from
Tennessee, and disruptions to Mackenzie’s home life. It also caused Mackenzie
to fear Cynthia, lose trust in her, and not want to live with her. Cynthia admitted
as much in her testimony.
This is the state of affairs even if Cynthia has addressed her mental health—
an assertion we question. Cynthia’s testimony at the hearing was rambling,
confusing, and disjointed, with occasional outbursts. While she said that she would
continue with her mental-health treatment, she also testified: “I would like to stop.
I think I’m strong and done.” And she had a gap in treatment after her committal
ended, with no therapy sessions from the beginning of December 2021 until the
week before the hearing and a missed medication-management appointment in
January 2022. So we are skeptical of her claim that her mental-health issues were
“short-term,” as the district court implicitly found as well. See Seymour, 2010
WL 4967989, at *2 (deferring to the trial court’s factual findings in recognition of its
“ability to observe the witnesses while they were testifying and thus better judge
their credibility”).
At this point, the relationship between Cynthia and Mackenzie is afflicted by
an inability to communicate and a lack of trust. As guardian, Cynthia may make
various decisions for Mackenzie without prior court approval, including her
residency. See Iowa Code § 633.635(2). But Mackenzie does not trust Cynthia
or her judgment, she fears her, and she does not want to live with her. Despite
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being aware of Mackenzie’s feelings, Cynthia testified that she would require
Mackenzie to return to live with her. While Mackenzie is intellectually disabled,
she is high functioning and has some level of independence, as shown by her
resistance in communicating with Cynthia.
In our view, the status of the relationship between Mackenzie and Cynthia
would also render the guardianship “difficult, ineffective or unduly protracted” if
Cynthia were to remain as Mackenzie’s guardian. Cf. In re Est. of Denzler,
No. 09-0665, 2009 WL 5126351, at *2 (Iowa Ct. App. Dec. 30, 2009) (finding no
abuse of discretion in district court’s disqualification of executor as unsuitable
based on inability to communicate with beneficiaries and lack of “trust and
confidence necessary for the discharge of his duties as executor”); Est. of Randeris
v. Randeris, 523 N.W.2d 600, 606 (Iowa Ct. App. 1994) (affirming removal of
fiduciary based on, among other things, lack of trust and confidence).
For these reasons, we reject Cynthia’s claim that there was no basis in the
record for her removal as unsuitable and affirm the district court’s decision on this
basis.7
AFFIRMED.
7 The court did not specifically remove Cynthia on this, or any other, ground. But
Cynthia does not complain about the court’s specificity; she only complains there
was no basis in the record to support removal for unsuitability, failure to perform
legal obligations, or acting contrary to MacKenzie’s best interests. See In re
Marriage of Mills, 983 N.W.2d 61, 67 (Iowa 2022) (limiting scope of review to
adjudicating rights anew “on the issues properly presented”). We have not
addressed these last two grounds due to our conclusion that Cynthia was properly
removed on the ground of unsuitability.